State ex rel. Kiihl v. Chambers

POLLEY, P. J. This proceeding was instituted under the provisions of' sections 807-815, C. C. P., commonly known as the •Bastardy' Act; The complaint, in substance, follows the provisions of section 807. The jury returned the following verdict: “We, the jury in the above-entitled action,- find that Roy Chambers is the father of the female child given birth by Bertha ■.Kiihl-at Dempster, in Hamlin county, South- Dakota, on the 1st •day of-April,- 1912.” And upon this verdict judgment was entered, as provided by -section 811, C. C. P-. From this judgment, and from an order denying a motion for a new trial, defendant appeals. [1, 2] It is first contended by appellant that there was no evidence offered at the trial to- prove that the relator was unmarried either at the time of the intercourse that resulted in her pregnancy or at -the time of the -'birth of the child, and that, for that reason, the evidence -does not support the verdict. Under the provision of section 807, C. C. P., it is only in cases where an unmarried woman is pregnant, or has giv-en birth to a child which by law is deemed a bastard, that this proceeding can be maintained; and1 it is true that, in this case, there was no direct [558] proof that relator was unmarried at either of the above-mentioned times. This, we 'believe, was fatal to the verdict. The allegation, in the complaint that the relator was unmarried was absolutely necessary under the statute to give the court jurisdiction oí the subject-matter of the action. That the relator was unmarried was. essential to the liability of the defendants, and it is necessary that this fact be shown by the evidence. There is no presumption that the relator was unmarried, and, inasmuch as it is only in cases, where the relator is unmarried that the action can be maintained at all, there must be proof that the relator belongs to the class provided for by the law. While we do not think it necessary that the jury should make a special finding that the relator is unmarried, they should have been instructed by the court that they could not find a verdict for the relator unless they were satisfied from the evidence that she was unmarried. It is contended by respondent tha-t appellant waived this issue by requesting the-court to instruct the jury that the issue to- be tried is whether or not the -defendant is the father of -the child born to the -complaining witness. The instruction given pursuant to- this request is substantially in the language of section 809, Code Civ. Proc., but a request to instruct the jury under section 809 cannot ¡beheld- to be a waiver of proof of fa'ct-s that are essential under the provision of section 807. Neither the request nor the instruction given was intended1 to cover all of -the issues involved in the case. [3] While the relator was on the stand she was asked this question: “Who is the father of that child?” This was objected to on the ground that it called for a mere conclusion and opinion of -the witness. The objection was overruled, and the witness-answered: “Roy Chambers.” Appellant contends that this question covers the whole issue submitted to the jury, and that the-admission of the answer was such an invasion of the province-of the jury as warrants a reversal of the judgment. Of course-if this testimony is only the expression of the opinion or conclusion of -the witness, then appellant’s contention is correct. But we do' not agree with counsel in this- respect. Relator had testified to- several acts of sexual intercourse that took place 'between-her and appellant at about the time she must have become pregnant. 'She -knew, of course, whether appellant had- had sexual [559] intercourse with 'her 'at about the time, and she also' knew whether any other man had had intercourse with her at about that time, and was .able to state, as an absolute fact, from her own knowledge, that appellant was the father of her child. Whether she was .telling the truth or not was a question for the jury. Of course appellant had the right to rebut or break the force of this testimopy, if he could, either by cross-examination of the witness herself or by the testimony of other witnesses; and that he attempted to' do this is amply shown by the record. In State v. Snure, 29 Minn. 132, 12 N. W. 347, the Supreme Court of Minnesota held — and we believe rightly SO' — that it was no error to permit the complainant, in a bastardy proceeding, to testify that she became pregnant as the result of certain acts of sexual intercourse with the defendant, and it has been 'held, in criminal prosecutions for seduction, that the complaining witness may testify that the defendant is responsible for her pregnancy. Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477. In our opinion, there was no error in permitting' the relator to answer the question. [4] During the trial, the physician who attended the relator at the time of her confinement testified on behalf of the defendant! His testimony related chiefly to statement made by relator at that time relative to< the paternity of her child. He testified that relator, not only told him at that time that she had had sexual intercourse with the defendant at about the time she must have become pregnant, but that she told' him at that time she had also had sexual intercourse with another man at about the time she must have become ‘pregnant. In fact, if this testimony relative to what heTdaims" relator told him and what he testified relative to the period of human gestation is true, it would have been im possible to say, with any degree of certainty at least, who’ was the father of the child. On cross-examination this witness was asked if he did not, within a day or two after the. child was born state to various parties, including the mother and brother of relator, in effect, that defendant was the father of' relator’s child, and that they (the mother and brother) ought to take some steps to compel defendant to support the said child. The witness denied that he had made such statement to said parties. On rebuttal, relator’s mother and brother were permitted, over appellant’s ob [560] jection, to testify that sai di witness did make such statements to them' at that time.' It is now contended by appellant that this was error, and of so prejudicial a nature that the judgment should 'be reversed on this ground alone. Appellant relies, with confidence, upon the rule that “a witness cannot be impeached upon a collateral matter brought out on -cross-examination,” as announced by this court in State v. Davidson, 9 S. D. 564, 70 N. W. 879. We do not question the correctness of this rule, but, before -it can be applied, it must be -determined that the matter brought out on cross-examination is in fact collateral to the issue. The rule is general that a witness may be cross-examined relative to- all matters brought out on his examination in chief, and, for the purpose of impeaching such witness, it may be shown that he has made prior statements, touching -the same matter, at variance with -his statements on the witness stand. But this relates only to- statements of fact, or what purports to be fac-t, and not to mere expressions of opinion of matters that are -collateral to -the issue. If the question had been limited to what the witness said the relator had -told him relative to the paternity of her child, then it would have been proper, but the question calls for what the witness ha-'1 stated to have been bis opinion as to who was the father of relator’s child. This was clearly collateral to the issue within the iule announced in the Davidson Case, and constituted prejudicial' error. [5] Appellant next contends that the court erred in instructing the jury upon the subject of previous unchastity of the relator, Section 809, C. C. P., provides as follows. .“The issue to be tried on such -complaint shall be whether the person charged, as aforesaid, is the father of the child, which issue shall be tried by a jury. In any hearing or examination or trial under this article evidence of the previous unchastity of the-female shall fee admissible.” Upon the subject of previous unchastity, the trial court, at the request of appellant, charged the jury that, in determining whether or not appellant was the father of relator’s child, they might — • “consider any evidence tending to- show the previous un-chastity of the prosecuting witness, Bertha Kii-hl, if you shall-find that any such evidence has been given in this case.” ' - [561] And the court, upon its own motion, further charged the jury that: _ “The offering of the evidence of unchastity on the part Of' Bertha Kiihl * * * is to be considered by you only for the purpose of determining who the father of the child was, or whether -the fact that she was unchaste * * * would affect her evidence.” Previous unchastity on the .part of the complaining witness' in bastardy proceedings could be shown prior to the enactment bf' ■section 809, and it is contended by appellant that, 'by the 'enact-' ment of this section, the Legislature intended to enlarge the scope of evidence of previous acts of unchastity and make such evidence admissible for .purposes other than those to which it was1 limited by the common law. With this contention we cannot agree. • In' the first place, appellant suggests -no other purpose for which it is admissible; and, in the second place, section 809 itself limit's-the issue to the single- question of whether the person charged- is the father of relator’s child. The sections of the Code above ré-' ferred to as constituting the Bastardy A-ct were enacted by the Legislature as chapter 50, Laws of 1899. The intent of the Legislature appears to have -been to provide, in one act, a ■ 'complete remedy in this class of cases; and" the fact that the act contains some provisions that existed at the common law does' not imply that the Legislature intended to- change or enlarge upon' pr'bvísioiis- or rules of law already in existence. The jury might haVe inferred,' from the instruction given at appellant’s request, unexplained, -that1 previous unchastity on" the part of the relator constituted -a dé'-: fence to the action 'regardless of the length of time that hád' expired since the occurrence of suc-h acts of unchastity. BúC'-sCícIt is not the case. It is on-ty when -other acts of unchastity occurred' at a time when the relator might -have become pregnant -:th'dt: such acts constitute a .defense, and the instruction was' 'properly given. Appellants -contend that there was misconduct o-f the jury-' that prevented him from having a fair trial; but, as thé judgméñt) must be reversed on other grounds, and as the acts complained-of as constituting misconduct are not likely to occur again, it is' not necessary to determine whether there was misconduct or not. The judgment and order appealed ‘from are reversed.